Volume 230 — Minnesota Reports

<bold>Automobile — injury resulting from bridge washout — failure</bold> <bold>to give warning — liability of township officers</bold>. <block_quote> Township officers are not liable to one injured in driving into bridge washout caused by heavy rain for failure to give warning of existence of washout.</block_quote>

<bold>Municipal corporation — sidewalks and defective entryway to</bold> <bold>building — liability for injuries</bold>. <block_quote> 1. A municipality maintaining public walks and the owner of property adjoining the same are both liable for injuries sustained by reason of defective entryways, coalholes, or other like facilities placed therein for the convenience of the building owner, where such defects are due to the latter's negligence.</block_quote> <bold>Same — same — test for determining negligence</bold>. <block_quote> 2. The applicable test for determining negligence in such cases is whether defendants exercised reasonable care in the creation or maintenance of the facility involved, having in mind the risks which might reasonably be anticipated with respect thereto.</block_quote> <bold>Same — same — necessity of enclosure of entryway</bold>. <block_quote> 3. Where no claim was made that a sidewalk stairway leading to the basement of a building, or the entry thereto, or the iron pipe railing<page_number>Page 56</page_number> almost surrounding same, was defective, the only claim of negligence being that building owner should have provided complete enclosure therefor, with a gateway across the entryway to the stairway, in anticipation that pedestrians using the adjoining sidewalk might be forced by a strong wind through the four-foot opening provided as an entryway to the stairway, <italic>held</italic> that reasonable care did not require such gateway in anticipation of such unusual occurrence, since the danger thereof could not be reasonably anticipated by owner.</block_quote>

<bold>Habeas corpus — proceedings — jurisdiction — court</bold>. <block_quote> 1. The probate court of this state has no jurisdiction in habeas corpus proceedings.</block_quote> <bold>Parties — intervention — effect thereof as to issues between</bold> <bold>original parties</bold>. <block_quote> 2. An intervener has no right to change the issue between original parties.</block_quote>

<bold>Workmen's compensation — persons within act — motor-carrier</bold> <bold>employer leasing vehicle to another with its employe as</bold> <bold>operator</bold>. <block_quote> A motor carrier which leased its vehicle to another carrier, but sent its employe with the vehicle as an operator, is <italic>held</italic> to be the employer of the operator under the compensation act where it appeared that the lessor paid the employe's wages, had the right to discharge or substitute another driver on the vehicle, and generally retained control over the employe. The provisions of the lease giving to the lessee exclusive control over the vehicle did not, under the circumstances here, constitute the driver of the vehicle the lessee's employe.</block_quote>

<bold>Highway traffic regulation — bicycle riders — rights and</bold> <bold>duties under act</bold>. <block_quote> 1. Pursuant to M.S.A. <cross_reference>169.03</cross_reference> and <cross_reference>169.221</cross_reference>, bicycle riders are granted all the rights and are subject to all the duties applicable to the driver of a vehicle under the state highway traffic regulation act, except as to <italic>special regulations</italic> (see, § <cross_reference>169.221</cross_reference>,<footnote_reference>[fn2]</footnote_reference> subds. 2, 3, 4, 5, 6) and except as to those provisions thereof which by their nature can have no application.</block_quote> <bold>Negligence — statutory violation constituting prima facie</bold> <bold>evidence of negligence — weight and sufficiency</bold>. <block_quote> 2. A statutory violation constituting prima facie evidence of negligence prevails as a controlling evidentiary factor against the violator only so long as there is an absence of evidence tending to show a reasonable ground for such violation or only so long as there is no actual evidence to justify a reasonable assumption that such violation was not negligent under the circumstances and would therefore not reasonably endanger himself or any other person entitled to the protection of the act.</block_quote> <bold>Same — same — burden of producing evidence of justification</bold>. <block_quote> 3. The burden of producing such evidence of justification is upon the violator, but the moment such evidence appears from any quarter whatever the prima facie case against the violator not only ceases thenceforth to have any validity, but wholly vanishes from the litigation as an evidentiary factor, and thereupon the burden of going forward with the evidence shifts to the opposing litigant.</block_quote> <bold>Highway traffic regulation — compliance with act — suspension</bold> <bold>or modification of provisions</bold>. <block_quote> 4. In the absence of statutory authority, no local police or other officer can suspend or modify any provision of the highway traffic regulation act so as to relieve any person from compliance therewith.</block_quote><page_number>Page 189</page_number> <bold>Automobile — care required of persons entering intersection</bold>. <block_quote> 5. Due care in keeping a lookout for other approaching vehicles is not to be determined by the number of times the operator of a bicycle or other vehicle looked or by how often, or when, or from where.</block_quote> <bold>Negligence — contributory negligence — failure to see that</bold> <bold>which is in plain sight</bold>. <block_quote> 6. The mere failure on the part of one who looks and does not see that which is in plain sight and which might have been seen does not in itself constitute contributory negligence as a matter of law <italic>without regard to the</italic> <italic>surrounding circumstances</italic>.</block_quote> <bold>Same — same — degree of care required of 15-year-old girl</bold>. <block_quote> 7. A 15-year-old girl is obliged to use only that degree of care which an ordinarily prudent girl of her age, intelligence, and experience can reasonably be expected to exercise under the same or similar circumstances.</block_quote> <footnote_body><footnote_number>[fn2]</footnote_number> L. 1947, c. 428, § 20.</footnote_body>

<bold>Principal and agent-powers of agent — extent thereof — sale</bold> <bold>of property — authority to mortgage</bold>. <block_quote> 1. In the absence of an agreement or manifestation of intent to the contrary, mere authority to sell property does not, by implication, confer authority to mortgage such property. This rule has been applied to an agent authorized to sell and convey real estate and as to an authority to sell personal property.</block_quote> <bold>Estoppel — assertion of title to personal property</bold>. <block_quote> 2. In order that the real owner of personal property may be estopped from asserting his title against a person who has dealt with one in possession in faith of his apparent ownership, it is the general rule that something more than mere possession and control is necessary. The authorities indicate that possession must be accompanied by indicia of title.</block_quote> <bold>Same — same — motor vehicle</bold>. <block_quote> 3. Under M.S.A. <cross_reference>168.15</cross_reference>, providing that "When any person seeks to become the owner by gift, trade, or purchase of any vehicle for which a registration certificate has been theretofore issued under the provisions of this chapter, he shall join with the registered owner in transmitting with his application the registration certificate, with the assignment and notice of sale duly executed upon the reverse side thereof," a registration card, signed only in blank by the person whose name appeared on the card and not in compliance with the statute, did not constitute such indicia of title in a dealer who had possession of the car for sale purposes as to estop the real owner from claiming title in the car as against a purported mortgagee of the dealer, where the evidence was in conflict as to whether the dealer had the card in his possession at the time the purported mortgage was made and where it clearly appeared that the dealer's name was nowhere on the card.</block_quote><page_number>Page 470</page_number>

<bold>Automobile — action for injuries arising out of collision —</bold> <bold>effect of verdict of negligence as to both plaintiff and</bold> <bold>defendant</bold>. <block_quote> Where, in an automobile collision case, in which plaintiff sued to recover upon the ground that defendant was negligent and defendant asserted as a defense that plaintiff was guilty of contributory negligence and as a counterclaim a right of recovery upon the ground that plaintiff was negligent, the jury returned a verdict finding "the Plaintiff and the Defendant both negligent," the verdict constitutes a finding that plaintiff was not entitled to recover on his cause of action and that defendant was not entitled to recover on his counterclaim, and it makes no difference in this connection whether the verdict be construed as one finding that the respective parties had failed to sustain the burden of proof that the negligence of his adversary was a proximate cause of the collision or whether it be construed as evincing an intention to find that the negligence of both parties was a proximate cause thereof.</block_quote>

<bold>Habeas corpus — proceedings — petition — sufficiency</bold>.